amiri nassoro msulwa others vs republic 2013 tzhc 2044 27 november 2013

IN THE HIGH COURT OF TANZANIA

AT TANGA CRIMINAL APPEAL NO. 23 OF 2.012 (Originating (ram Criminal C a s e No. 235 of 2.03.1 o ft Ik? Dir'trin-r nm-i- of Handeni at' ! ;,i nder.i) 1. AM3IU K’AS1:0R.0 MSUi.WA 2. M W ljU M A AMIRI 4 3. NASSORO AMIRI 4. SUFIANI AMIRI 5. SAIDI SELEMANI (a) NKQNGA 6. THABIT ALLI NKONGA ~J .APPELLANTS

VERSUS THE REPUBLIC ................ ................ ........................... .....RESPONDENT

JUDGM ENT Ruqazta, J. This appeal originates from Criminal Case No. 235 of 2011, instituted in the District Court of Handeni at Handeni. The appellants were jointly arraigned on two counts, namely; Armed Robbery Contrary to section 287(A) and Arson contrary to section 319(a) of the Penal Code Cap. 16 of the Laws. As regard to first count, the particulars were that, on 16th day of August 2011, night hours at Sindeni Komnyuzi village 'within Handeni i District, Ilie appellants jointly and together did steal lour cellular mobile phones make Nokia, one bicycle, different types of animal medicines and A3 heads of cattle, all total valued at Tshs.2'1,07:3,000/= property of .Vrcmic Mu/cp-c, it nob tunner alleged that, immediately at, or before the incident of stealing, did threaten the victims with 3 bush knife Ofcsnga),and 4 ** ' i > local firearm (.Gobore) in order to obtain the said property. In second count, it was alleged that the appellants jointly aod together set fire to the dwelling house of Jeremia Mayapa and destroyed several valuable items all total valued atT.shs. 527,000/=. Both denied the accusations but at the end of the trial, the appellants were found guilty, convicted and sentenced to 30 years imprisonment for the first count; and on second count to serve 7 years imprisonment, sentences to run concurrently and, in addition, they were ordered to pay compensation in

the sum of T.shs.24,500,000/= for the injuries and property loss. Aggrieved by conviction and sentences, the appellants have now filed an appeal comprising six grounds. During hearing of the appeal, the appellants chose to adopt their memorandum of appeal with nothing more to add thereto. Ms. Kaaya learned State Attorney who appeared for 2 the Republic, did not support the conviction on account that, the incident occurred at night and PW1 and PW5 did not say with clarity how they were K able to positively identify the appellants. What is mon\ she went on, material witnesses surh as village rh.iirmpn and neighbour., v .u c i.ut o J L d to testify. On the allegation that PW.I suffered oun wounds and a bullet pellet removed from his ieg Ms. Kaaya wondered why out o f'th e three doctors who treated him not a single one testified; moreover, why the PF3 was not tendered by the maker'" as per section 240(3) of the Criminal Procedure A c t , Cap. 20 R.E. 2002 and, lastly, the learned state counsel had misgivings with the way the judgment was written claiming that it fell short of the requirements of section 132 of the Criminal Procedure Act in that it is not reasoned. The case for the prosecution was comprised of six witnesses out of whom five were family members. Though the testimonial evidence is not clear, but to crystallize on it, it was common ground that, on the fateful day at

night, PW1 Kalai Mayapa heard dogs barking followed by a gunshot and suddenly the bandits" attacked them. According to him, he “knew the bandits and he was able to mention their names and, moreso, he managed to identify them with the aid of moonlight and also he cam e face to face with first appellant (Amir) who shot him on his left loot, and he also ' th identified the third appellant. Me deposed further that he saw the A' c p p c Mcn1' holdinn <3 bush knifa and, also, ih p Slh appellant. 1 he appellants also assaulted his two brothers and stole cash money Tshs.2,055,000/= which he obtained after selling his cows at the market a d a y (earlier and 4 ** * i* some other properties were stolen. He went on to claim that, the evening before the incident, the-2n.d.appellant came to byy milk which was strange and unusual for him to go there to buy milk. His evidence was supported by PW2 who testified to have been assaulted by 3rd appellant using a stick and he testified to have seen the 1st appellant setting fire to their house using a piece of burning wood. He testified to have had ample time to witness the entire incident as he was hiding in a nearby bush near their house. Another testimony came from PW3 who testified to have been wounded by the 2nd appellant on his left arm finger. PW4 confirmed the occurrence and added that there was loss of 43 cows due to fire. PW5 Jeremia

Mayapa who was the owner of the properties lost was not present during the incident but he was phoned by PW1 shortJy after the incident, came and reported the matter to the police and took P W l to hospital the following day. After the incident was reported to the police station at Handeni, PVV6 No.E. 3220 D/C Samwel was assigned to investigate. He visited the scene and saw PW1 with a gunshot wound; he also saw a burnt n u i and several items burnt down. Me was informed too about the loss of 42 cows bi'iu sorr,e other properties. 7 hereafter he wrote witness' ; r 4 7 statements but those statements w ere'not produced in court, and on the same day he arrested 1st to 3rd appellants. Furthermore, this witness tendered PF.3 which I shall comment later on regarding its admission in evidence. In their defence, all appellants completely disassociated themselves from the allegations levelled against them. The first appellant relied on the defence of alibi, claiming that he was not present during the incident as he was attending his daughter's ceremony at Sindeni Bwawani. As for the 2nd appellant, he claimed to have been sick and never left his home on the material day; the 3rd appellant refuted the allegations and, moreso even when his house was searched by police nothing was found. The 4th appellant claimed to have been arrested at the premises of the 2nd appellant where he had gone

to visit him. As for the 5,h and G11' appellants, both refuted the allegations claiming to know nothing about the incident H and relied on an alibi as they were not present, but had gone to visit their grandfather at Kamwenda village. In the light of the foregoing, it is apparent that the trial court magistrate was convinced that there was adequate and positive identification of the appellants. It was on:\his basis i-» that the trial court proceeded to find them guilty consequently convicting them. r On their part, the appellants challenged the evidence of identification; secondly, nothing was found in their possession, thirdly, it is appellants perception that th e ’ PF3 was tendered without complying with section 240(3) of the Criminal Procedure Act; fourthly, failure of the trial magistrate to consider the quarrel between the first appellant and Mayapa family which he did not even put on record with no reason and claiming it was an afterthought, and lastly, denial of their right to call their witnesses. As I said earlier, Ms. Kaaya learned Counsel declined to support the conviction. Having gone through the record and the memorandum of appeal, I deem it opportune to start with admissibility of the PF3 which was tendered by E. 3220 D/C Samwei. At page 25 ol the typed proceedings, here is what was recorded and I reproduce the proceedings as under: fi ere is*a PF31 pray to tender . *7 1st accused: No objection 2nd accused;' ” . -do- J d accused: -do- 4 h accused: -do- 5th accused: -do- 5th accused: * - -do- 5th accused: -do- 5thaccused: -do- (jh accused: -do- Sgd: P.G.M. Maligarta, RM 18/04/2012 Court: The accused persons are addressed in terms o f S.240 o f the CPA. 1985 Cap. 20 (R.E.

2002) Sgdt P.G.M. Maligana/ RM. 18/04/2012 1st accused; I don't see the necessity to caii the Doctor we pray to be tendered. 2ndaccused: -do- 3 d accused: -do- " -/ accused: ~co- ': 5th accused: -do: * accused: -do- / - - j c- Sgd: P.G.M. Maligana, RM 18/04/2012 ■ Court: PF.3 Namely Karai Mayapa dated 16/8/2012 tendered as an Exhibit marked P.2." It is now dear from the above extract that, the appellants were addressed in terms of section 240 of the Criminal Procedure Act and opted not to call the maker, so they cannot at this juncture be heard claiming infringement of that right, and therefore, it follows, that this ground has no merit. I now turn to the other ground. Ms Kaaya faulted the prosecution for failing to call important witnesses such as the chairman and neighbours. She urges me to draw adverse inference on that. In terms of section 143 of the Evidence Act, there is no specific number of witnesses required for a K ¥ party to prove a n y fact. As this is a criminal case, the onus of proving the U 'j L iL> UpUi i U'lC. p i o L - C C U U O i» U )! i l i l v u ! 1L v_v iu C l ivA. oitU o ^ y U i lU o il rpprpnphip doubt*. Wh,?t* ir important if the oualitv of ovidence of tho witnesses and where necessary the ttrial court should determine on ‘the demeanor, competence and credibility of the witnesses which I believe r- S - J • were considered by the trial court. However,

going by the record, there are apparent cracks in the prosecution case. For instance, there was no alarm raised during the incident, none of the witnesses testified to have -seen neighbours arriving at the scene regardless of several gun shots fired by the appellants, and, reasonably, one would have expected neighbours to hear those shots. PW4 claimed the village leader went to the scene and saw what happened but was not featured to corroborate that evidence. There was also no disclosure of their names even the prosecution did not list them as their witnesses and no explanation was given as to why they didn't list them. To me the non­ calling gives rise to doubt as to whether or not the incident happened and H the appellants were the culprits. On the complaint raised by the first appellant, wuh regard 10 ihe iriai rnocisiroie's failure to consider the quarrel between him and ilie victim's ~ * ’ 4 * ■ family and he did not put it on record, it is curious that he did not raise it during the trial so it is late-.in^ the day to raise it at this stage of appeal. As for the allegation that the magistrate did not record part of his evidence, this is a strong allegation which needs proof and not bare allegations. Ido not see any reason for the trial court not to record his defence aseverything on record is open, tempting me to treat this allegation as escapism. I find this ground

devoid of merit. On the issue of being denied to call defence witnesses, the record revealed that, it was only the first appellant who sought to call witnesses but his co-appellants stated that they had no witness to call; therefore I will consider the first appellant only and the record tells as under: "1st accused: I am not ready for defence today until my witnesses 10 are called upon to attend. Sgd: P.G.M. M a lig a n a , RM, 10 /Ob'/ 2 0 1 2 " Public Prosecutor: I pray for the accused person to note that he will be hii oosiacie since ] srn travelling tar away to conduct inis csss, also .the i . defence raised by the 1st accused is supposed to be supported by notice at the first date o f hearing*therefore such kind o f defence according to S. 194(4) o f the CPA 19851 pray the same to be disregarded; as the said witnesses o f the 1st accused person are not helpful we pray to proceed with hearing:

R U LIN G This case shall proceed for hearing today the:first accused prayer on defence o f "alibi"overruled, S. 194(4) o f the CPA C/W. "Sgd: P.G.M. Ma/igana, RM." It strikes me as odd how the prosecution jumped to a conclusion that the appellant wanted to rely on defence of alibi. The only thing that the appellant stated was that he was not ready to proceed on that day as he needed more time to call his witnesses. Astonishingly, the trial magistrate li fell into the trap and ruled the matter in favour of the prosecution without considering that the appellant'has a right to call his witnesses to defend himself. Although the first appellant's defence rotates around the defence of which the trial magistrate in his judgment discounted whole sale pursuant to section 194(6) of tho Criminal Prorpriurp Art th?t notice of f * alibi was not furnished to the prosecution. For that reason, the error is curable under section 388(1) of the Criminal Procedure Act, as there was f' * - j -i- • no failure of justice even if those witness' were called, the decision would have been the same. Regarding the contents of the judgment which Ms. Kaaya complained that it is not reasoned, I join hands with her because the way the trial magistrate evaluated the evidence leaves a lot to be desired. There was no serious attempt by the magistrate to give reasons for his decision much as these are serious

offences attracting heavy sentences; if I may quote how he came to his conclusion this is what he said: "The evidence adduced by the prosecution witness is o f water tight since all the witnesses PW1; PW2f PW3 and PW4 were the victims o f circumstances and 12 witnesses by eyes of which the nffenn'S were committed, further more they did identify each and every accused person when they were committing the offences as charged (sic)." Turning to the other grounds, I do agree with the appellants that, none of them was caught St the scene or found with anything that w<*vi stolen on the material day. The only evidence that was relied upon to convict them was visual identification. Here two questions arise; these are whether the offence of armed robbery and the issue of identification were proved beyond reasonable doubt against the appellants. From the evidence, it is undisputed that PW1, PW2, PW3, and PW4 were eye witnesses. Their aid of identification was moonlight though the intensity of such light was not known, but they claimed to know the bandits before the incident. Moreover, they mentioned appellant's names and the weapons they were carrying on the material day and they explained how the appellants inflicted injuries on their bodies. Nevertheless, since this is a case which entirely depend on visual identification the evidence has to be water-tight. Here we are not told of how

bright the moonlight was-though the witnesses were unequivocal in their assertions of what they saw. The prosecution case, however, is silent on the distance between the bandits and victims and duration of the whole incident which are very crucial. Another point which is still crav'nr for an nnrwer \r t+if? birvcle * " i •> tendered as exhibit PI with only tyres burnt and not the whole bicycle as raised by first appellant but the, prosecution did not counter that. Also, the prosecution listed the sketch map as one of their exhibits but they did not produce it to prove that the said hut was burned. Another important point to note is that no alarm was raised during the incident as no other witnesses apart from family members witnessed' the incident. Not only that but also, the injury inflicted by panga on PW3 by 2nd appellant was not proved to the required standard. The PF3 stated the injury was caused by a bullet but the said bullet was not tendered'and in addition the injury was marked "no harm" which raises doubt as to whether it was really a gunshot (Gobore) that used to inflict that would to PW1 and no explanation was given by the prosecution on that omission. 14 With all these doubts in mind, obviously, it cannot be said that the prosecution case was proved beyond all reasonable doubt. That said it follows that the conviction cannot be allowed to stand. It is

therefore quashed and set aside and the resultant ppmr-nrr^' r ^ , Appellants are <o be released forthwith from custody unless otherwise lawfully held on other lawful cause. P. A. RUGAZIA, 1. 27 / 51/2013 / DATE: 27 / 11/2013 CORAM: P. C. MKEHA, DR. 1st a p p e l l a n t ^ 2 nd APPELLANT 3 rd APPELLANT 4th APPELLANT All present > 5™ APPELLANT 6th APPELLANT RESPONDENTS: Mr. Mrandu for C/CLERK: Noel 15 C o u rt: Judgment is delivered on this 27th day of November, 2013in the presence of the parties. // s & -:\ T / / / ' i/ / \ f •’ ' #^ (j " r> ri . c. M K i'H A , d r. ! 27/3.3./2013